"…composing documents or legal arguments well is a real art, and even to the good experienced drafter it is never easy." Lord Neuberger
1. Plenty of short, informative, accurate headings
Headings offer one of the most powerful ways to improve communication in any document. Here's an example: this article is about 1650 words suggesting five ways to improve writing habits.
Yet, without reading more than 25 words (five headings), you could already name the five ways. If you had no time to read any more, you would still have learned far more than 1/66th of what you wanted to know.
If you had only time to read about one habit, you could go straight to the one that interests you most. And, before you began reading about any habit, you would already know the context for whatever detail might then appear. All that, from reading just 25 words.
Contrast almost any judgment written in the UK today. The latest Supreme Court judgment posted on Bailii when I wrote this paragraph was Steel v NRAM Ltd  UKSC 13.
There are no headings. I challenge any lawyer to work out who won in less than 59 words of reading (the first and last paragraphs, containing a logic puzzle whose solution identifies the winner). And I challenge anyone to find the grounds without skimming the whole judgment (over 6200 words). It took me 10 minutes, and that's after 35 years' practice at reading judgments.
Now, if I want to go back to key parts of the decision, I must rely on my own marks or start again. If I want to read it all, I must do so without any signpost to show where I am or what is coming. Because the writer didn't signpost their work, litigants must pay their lawyers to read and re-read without help, while practising lawyers pay law reporters and textbook writers to do the same thing.
That is the difference headings can make to the reader's time, effort and understanding. By using headings, you show respect for your readers' time and money. You prove that you understand their needs and that you can help. Writing with poor headings, or none, suggests the opposite.
2. Sentences no more than two lines long
Next after good headings, short sentences are the most powerful way to save time and avoid confusion for both reader and writer. Another example, again from Steel v NRAM. Time yourself reading these extracts. Which is easier to understand?
A makes a careless misrepresentation which causes economic loss to B. There was no contract between them. But did A owe a duty of care to B? No, said the trial judge. Yes, said the appellate court. So it is A who brings this further appeal.
6 sentences: average 9 words each.
But in my view this court does not need to explain why the Lord Ordinary cannot be said to have been wrong in concluding that it was not reasonable for Northern Rock to have relied on Ms Steel's representation without inquiry. We should bypass examination of whether he was wrong and should hold positively that he was right.
2 sentences: average 28 words
The information in the Northern Rock example could have been set out just as plainly as the equally complex information in the first. Here goes:
Was it reasonable for Northern Rock to rely on Ms Steel's representation without inquiry? The Lord Ordinary thought not. Maybe this court cannot say he was wrong. But we do not need to do so. We should bypass examination of whether he was wrong and should hold positively that he was right.
5 sentences: average 10 words in a sentence
In short sentences, you present one idea at a time in the order most convenient to the reader. Neither the writer nor the reader can get lost in convoluted constructions. Mistakes and ambiguity become easier to spot.
As a rough guide, if no sentence ever exceeds two lines, you won't be as brief as the first example or as tiresome as the second. You will be more readable than most lawyers.
3. Write in the reader's language
This article assumes that you are writing in English to an English-speaking reader. However, that doesn't mean you are writing in the reader's language. The example this time is from an email I received from a marketing professional. Was she writing in my language?
"I am reaching out to you to ask for some help please on a key project for the ABC team, we are looking at moving forward with our marketing strategy for 2018 and this entails:
- thought leadership for lead generation – essentially the view is this brilliant content will lead to business leads for the XYZ team and grow our reach in terms of communication around XYZ and our value proposition."
I'll give you a clue. I am an ex-lawyer and a writer. I have never said or written "reaching out", "grow our reach", "communication around" or "value proposition". I realise that XYZ are her employer's initials but I wonder who "the XYZ team" is. And I use full stops, not commas, to separate my sentences.
If that wasn't my language, whose was it? I'll remind you, my correspondent was a marketing professional. I suggest she was writing in her own language, the language of XYZ marketing. As I read it, I felt baffled and annoyed. She was clearly asking me for a favour, but I barely understood what she wanted.
The problem with writing to non-lawyers is that, in order to become good at law, we have had to learn so much legal language. We have forgotten how we wrote in the days before we became lawyers. We start to think "whilst", "monies" and "insofar" are everyday words. They aren't. We risk alienating our most valued clients and contacts for no reason except that other lawyers do the same. What an opportunity to stand out from the crowd by showing empathy and humanity.
4. Use list format wherever possible
Legal documents are plagued by unformatted lists disguising ambiguity. For example:
Save as expressly provided elsewhere in this Agreement, neither Party shall be liable to the other Party for any loss of use, profits, contracts, production or revenue or for business interruption howsoever caused and even where the same is caused by the negligence or breach of duty of the other Party.
Among the many problems with this clause is the ambiguity caused by the poor structure. What is "the same"? Is it only the business interruption mentioned a few words earlier? Or is it all six kinds of loss?
The same ambiguity affects "howsoever caused". The best way to format a list is in numbered (or bulleted) points, putting whatever they have in common at the top.
So the drafters of this clause, if they wanted to exclude as much as possible, might have written:
Save as expressly provided elsewhere in this Agreement, neither Party shall be liable to the other Party for the following, however caused, and even if caused by negligence or other breach of duty:
- any loss of use, profits, contracts, production or revenue
- business interruption
5. Good punctuation
Punctuation, like grammar and spelling, can hit a different nerve. Good punctuation is an aid to understanding. Poor punctuation may cause confusion, and can also trigger another reaction in a new reader. The marketing professional who wrote asking me a favour fell into this pitfall, when she wrote:
"I am reaching out to you to ask for some help please on a key project for the ABC team, we are looking at moving forward with our marketing strategy for 2018."
Strictly speaking, that comma should be a full stop. For most emails, our readers are not strict. However, an email asking a favour from someone you have never met is not the place for mistakes. First impressions are important and even trivial errors can suggest you haven't approached your reader with care.
Writing without punctuation is not the solution. Hard as it is to punctuate correctly, it is even harder to make sense without punctuation. This shouldn't need saying in the 21st century, but lawyers still send out documents with no more than one full stop to a paragraph or even a page: the opposite of every good habit recommended in this article.
For the many well-educated lawyers who know they have a weakness with grammar, spelling or punctuation, the solution is to take an interest and start learning the rules. And, in the meantime, get someone else to check those high-stakes documents that make your first impression on someone you don't want to alienate.
Are 5 good habits all you need?
Yes, a lawyer who regularly practised these five habits would already be a good writer, better than most lawyers. But no, there is so much more you can do. I've hardly said anything about organisation, word choice, computer aids to clarity, persuasion, editing, or how misunderstandings arise.
That is why the book Clarity for Lawyers exists. This is the book that first taught me good writing, and I'm delighted to have been able to contribute to the third edition.
Views expressed in our blogs are those of the authors and do not necessarily reflect those of the Law Society.